PURCHASE AND SALE AGREEMENT EXHIBIT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made
as of the 30th day of September, 1996, by and among PENINSULA/DW
ASSOCIATES, a California general partnership, having an office c/o ▇▇▇▇
▇▇▇▇▇▇ Realty, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(the Seller), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III, having an office c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ &
Associates, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Purchaser") and, with respect to certain provisions hereof, PENINSULA
OFFICE PARK, a California limited partnership (the "Peninsula
Partnership"), and CAMPUS DRIVE INVESTMENT COMPANY, a California limited
partnership (the "Campus Partnership"), each such partnership having an
office c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Associates, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H :
WHEREAS, Seller and Purchaser, among others, entered into
that certain Amended and Restated Agreement of Limited Partnership,
dated as of December 27, 1985, of Peninsula Partnership, as amended by
that certain Amendment No. 1, dated as of January 14, 1986 (as so
amended, the "Peninsula Partnership Agreement"), pursuant to which
Seller owns a 49.9% general partnership interest (the "Peninsula
Partnership Interest") in Peninsula Partnership; and
WHEREAS, Peninsula Partnership owns certain real and
personal property more particularly described in the Peninsula
Partnership Agreement (the "Peninsula Premises"); and
WHEREAS, Seller and the Peninsula Partnership, among others,
entered into that certain Amended and Restated Agreement of Limited
Partnership, dated as of December 27, 1985, of Campus Partnership (the
"Campus Partnership Agreement"), pursuant to which Seller owns a 23.29%
general partnership interest (the "Campus Partnership Interest") in
Campus Partnership; and
WHEREAS, Peninsula Partnership owns a 53.33% general
partnership interest in Campus Partnership; and
WHEREAS, by virtue of Peninsula Partnership's ownership of
its 53.33% general partnership interest in Campus Partnership and
Seller's ownership of its 49.9% general partnership interest in
Peninsula Partnership, Seller owns a 26.61% indirect general partnership
interest in Campus Partnership (the "Indirect Campus Partnership
Interest"); and
WHEREAS, Seller's Campus Partnership Interest and Indirect
Campus Partnership Interest together constitute a 49.9% direct and
indirect interest in Campus Partnership; and
WHEREAS, Campus Partnership owns certain real and personal
property more particularly described in the Campus Partnership Agreement
(the "Campus Premises"); and
WHEREAS, Purchaser is the managing general partner of
Peninsula Partnership, and Peninsula Partnership is the managing general
partner of Campus Partnership; and
WHEREAS, Peninsula Partnership and Campus Partnership are
sometimes collectively hereinafter called the "Partnerships;" and
WHEREAS, the Peninsula Partnership Interest and the Campus
Partnership Interest are sometimes collectively hereinafter called the
"Partnership Interests;" and
WHEREAS, the Peninsula Premises and the Campus Premises are
sometimes collectively hereinafter called the "Premises;" and
WHEREAS, the Peninsula Partnership Agreement and the Campus
Partnership Agreement are sometimes collectively hereinafter called the
"Partnership Agreements;" and
WHEREAS, Seller has made certain Shortfall Loans (as defined
in the Partnership Agreements) to the Partnerships that are listed on
Exhibit A annexed hereto and made a part hereof (the "Shortfall Loans");
and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser
desires to purchase from Seller, the Partnership Interests and the
Shortfall Loans upon the terms and subject to the conditions set forth
in this Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants, conditions and agreements
contained herein, the parties hereby agree as follows:
1. Purchase and Sale of the Partnership Interests.
Subject to and on the terms and conditions hereinafter set forth, Seller
agrees to sell, transfer, assign and deliver to Purchaser, and Purchaser
agrees to purchase, acquire and accept from Seller, the Partnership
Interests and the Shortfall Loans free and clear of any and all security
interests, claims, charges, liens and encumbrances of any kind and
nature (collectively, "Encumbrances").
2. Purchase Price.
2.1 Payment of Purchase Price. The total purchase
price for the Partnership Interests and the Shortfall Loans (the
"Purchase Price") is the sum of (i) the amount set forth opposite Base
Purchase Price on Exhibit B annexed hereto and made a part hereof (the
"Base Purchase Price"), subject to the adjustments described in such
Exhibit, (ii) the sum of the aggregate outstanding balance of the
Shortfall Loans on the Closing Date (as defined in Article 3) and all
interest accrued and unpaid thereon through the Closing Date (such
principal balance and interest, collectively, the "Shortfall Loan
Amount") and (iii) the Additional Purchase Price (as hereinafter
defined). The aggregate outstanding principal balance of the Shortfall
Loans as of August 31, 1996, together with all accrued and unpaid
interest thereon as of such date, is set forth opposite "Shortfall Loan
Amount" in Exhibit B annexed hereto. The Purchase Price shall be
payable as follows:
(a) The Base Purchase Price and the Shortfall
Loan Amount on the Closing Date, in cash, by wire transfer of
immediately available federal funds to a bank account designated by
Seller in writing to Purchaser at least three (3) business days prior to
the Closing (the "Bank Account"); and
(b) Subject to the provisions of Sections 2.4,
2.5 and 2.6, the Additional Purchase Price on the tenth business day
after the date, if any, on which the City Approval (as hereinafter
defined) is obtained from the City of San Mateo (the "City"), in cash,
by wire transfer of immediately available federal funds to a bank
account designated by Seller in writing to Purchaser at least three (3)
business days prior to the date such payment is required to be made.
Purchaser hereby agrees that if the Additional Purchase Price is not
paid as and when due, interest shall accrue from the date on which the
Additional Purchase Price is due at the commercial lending rate
announced by Citibank, N.A. in New York City as its "prime rate" on such
date plus three percent (3%). As used in this Agreement, the "City
Approval" shall mean the final approval by the Planning Commission of
the City of the building design, site plan and proposed lot line
adjustment more particularly described in Exhibit C annexed hereto and
made a part hereof and the certification of the Negative Declaration
prepared by the City in connection with the proposed development, as the
same may hereafter be modified in accordance with Section 2.3 hereof (as
so modified, the "Development Plan"), to permit the Peninsula
Partnership to convert the portion of the Peninsula Premises currently
used as a restaurant and more particularly described in Exhibit D
annexed hereto and made a part hereof (the "Restaurant Site") to office
use and to build an office building on the Restaurant Site; provided,
however, that the City Approval shall not be deemed received until (a) a
period of ten (10) days shall have elapsed after such approval and an
appeal shall not have been filed to the San Mateo City Council to
overturn such approval, or if such appeal shall have been filed within
such time period (x) such appeal shall have been settled or resolved in
favor of the City Approval and (y) a period of 120 days shall have
elapsed after such settlement or resolution without the filing of a
petition for a writ of mandamus by any party with good standing in a
court of competent jurisdiction and (b) a period of thirty (30) days
shall have elapsed after the filing by the City of a Notice of
Declaration pursuant to the certification by the Planning Commission of
the Negative Declaration and a valid referendum shall not have been
filed to overturn such approval, or if such referendum shall have been
filed within such time period, such referendum shall have been defeated
in an election held pursuant thereto.
2.2 Additional Purchase Price. As used in this
Article 2, except as otherwise provided in Sections 2.4, 2.5 and 2.6,
"Additional Purchase Price" shall mean forty-nine and nine-tenths
percent (49.9%) of the Restaurant Site Value (as hereinafter defined).
The "Restaurant Site Value" shall mean an amount calculated by
multiplying the maximum number of net rentable square feet of space that
may be constructed on the Restaurant Site in accordance with the City
Approval and all other applicable laws by (x) Thirty-Five Dollars
($35.00) for each of the first 85,000 net rentable square feet of such
space and (y) Fifteen Dollars ($15.00) for each net rentable square foot
of such space in excess of 85,000 net rentable square feet.
Notwithstanding anything to the contrary contained herein, if the
Development Plan, as finally approved pursuant to the City Approval,
contemplates that the building to be erected on the Restaurant Site will
not be used primarily for office purposes: (i) Purchaser shall pay to
Seller, as partial payment of the Additional Purchase Price and in
accordance with Section 2.1(b), an amount determined by applying the
formula set forth above in this Section 2.2 to the net rentable square
footage of the office space permitted by the approved Development Plan;
and (ii) the parties shall use good faith efforts to agree on that
portion of the value of the Restaurant Site that is attributable to the
non-office portion of the building contemplated by the Development Plan
(the "Non-Office Value"). If the parties shall be unable, within ten
(10) days after the granting of the City Approval, to agree on the Non-
Office Value, it shall be determined by appraisal as provided in Section
2.4 hereof. Within ten (10) days after the determination of the Non-
Office Value (whether by the parties or by appraisal), Purchaser shall
pay to Seller, as the balance of the Additional Purchase Price and in
accordance with Section 2.6 hereof, forty-nine and nine-tenths percent
(49.9%) of the Non-Office Value. For purposes hereof, a building the
first floor of which is to be used for non-office purposes, and the
other floors of which are to be used for office purposes, will be deemed
to be used primarily for office purposes.
2.3 City Approval. Purchaser hereby agrees to cause
Peninsula Partnership to use good faith efforts to obtain the City
Approval in the form presently being sought by Peninsula Partnership,
provided that nothing herein shall prevent Purchaser from causing
Peninsula Partnership to abandon such efforts, or to modify its
application for such Approval, if in the good faith judgment of
Purchaser (a) Peninsula Partnership is unlikely to be successful in
obtaining such Approval (whether in the form presently proposed or in a
modified form, as appropriate) or (b) further efforts to obtain such
Approval (whether in the form presently proposed or in a modified form,
as appropriate) are not in the best interest of Peninsula Partnership.
Purchaser shall provide Seller with such information as Seller shall
reasonably request regarding the status of Peninsula Partnership's
efforts to obtain the City Approval, and shall advise Seller of the
obtaining of the City Approval within five (5) business days after the
same has been obtained.
2.4 Appraisal Right. At any time after the earlier
of (a) June 30, 1997, if the City Approval shall not have theretofore
been obtained, and (b) the date, if any, which Peninsula Partnership
shall abandon its effort to obtain the City Approval, Seller shall have
the right, by written notice to Purchaser (the "Appraisal Notice"), to
cause the Restaurant Site and the buildings and the improvements located
thereon (the "Restaurant Property") to be appraised as hereinafter
provided and to elect to receive as the Additional Purchase Price forty-
nine and nine-tenths percent (49.9%) of the Appraised Value (as
hereinafter defined). Notwithstanding anything to the contrary
contained in the preceding sentence, Seller hereby agrees that if, on
June 30, 1997, Peninsula Partnership has not obtained, but is diligently
pursuing, the City Approval, Purchaser shall have the right (unless an
appeal or referendum shall have been filed as described in Section
2.1(b) and in the case of an appeal, the 120 day period referred to in
said Section shall expire later than October 31, 1997), by notice to
Seller, to extend the aforesaid June 30, 1997 date to the earlier of (A)
a date specified in Purchaser's notice, which date shall be no later
than October 31, 1997 and (B) the date, if any, on which Peninsula
Partnership shall abandon its effort to obtain the City Approval.
Purchaser hereby agrees that in the event that Peninsula Partnership
abandons its effort to obtain the City Approval or modifies in any
material respect its application for the same, Purchaser shall promptly
so notify Seller. Whenever, pursuant to this Section 2.4, the Appraised
Value is to be determined, such determination shall be made as follows:
Seller and Purchaser shall make good faith efforts to
determine by mutual agreement the fair market value of the Restaurant
Property based on (a) the highest and best permitted use of the
Restaurant Site as of the date of such determination, (b) the
probability that the City Approval will or will not be obtained, (c)
the assumption that the Restaurant Property is unencumbered by any
mortgage or deed of trust, and (d) the assumption that the Restaurant
Property has been properly subdivided, if necessary, from the remainder
of the Peninsula Premises, has access (either directly or by way of
easements or similar rights) to public roads, utilities and parking and
is otherwise capable of being operated as a free-standing property in a
manner consistent with the assumed use of the Restaurant Property (the
"Appraised Value"). Purchaser and Seller agree that for purposes of
determining the Appraised Value, (a) any out-of-pocket costs that would
be reasonably incurred after the date of such appraisal in (i) obtaining
the City Approval (if the same is still being sought), and
(ii) subdividing the Restaurant Property, creating access to public
roads, utilities and parking (all as taken into account in determining
the value of the Restaurant Property pursuant to clause (d) above) and,
if the fair market value is to be based on a different use than the
existing use of the Restaurant Site, the cost of demolishing the
existing restaurant building, shall be taken into account and (b) the
fact that Seller has less than a fifty percent (50%) interest in
Peninsula Partnership shall not be taken into account. If Seller and
Purchaser fail to agree on the Appraised Value within ten (10) business
days after the giving of the Appraisal Notice, either Seller or
Purchaser shall have the right, by notice to the other party, to appoint
an MAI appraiser with not less than ten (10) years experience in
appraising properties similar to the Restaurant Property in the San
Mateo, California area. Within ten (10) business days after the
appointment of such appraiser, the other party shall, by notice to the
initiating party, appoint an MAI appraiser with like qualifications;
provided, however, that if within ten (10) business days after the
initiating party has appointed its appraiser, the other party has not
appointed its appraiser, the initiating party's appraiser shall alone
determine the Appraised Value. Such appraisers (the "Seller"s
Appraiser" and the "Purchaser's Appraiser") shall each independently
appraise the value of the Restaurant Property in accordance with the
standards set forth above. Seller shall pay all of the costs and
expenses of Seller's Appraiser and Purchaser shall pay all of the costs
and expenses of Purchaser's Appraiser. Purchaser's Appraiser and
Seller's Appraiser shall be instructed to complete their appraisals and
to present them to the parties within twenty (20) days after the
appointment of such Appraisers. If the difference between Seller's
Appraiser's appraisal and Purchaser's Appraiser's appraisal (the
"Initial Appraisal Difference") is less than five percent (5%) of the
lower of such two appraisals, then the Appraised Value of the Restaurant
Property shall be the average of the two appraisals. If the Initial
Appraisal Difference is equal to or greater than five percent (5%) of
the lower of such two appraisals, then Seller's Appraiser and
Purchaser's Appraiser shall appoint a third MAI appraiser with not less
than ten (10) years experience in appraising properties similar to the
Restaurant Property in the San Mateo, California area (the "Final
Appraiser") to appraise the Restaurant Property, in which event the
Appraised Value shall be the appraisal of the Final Appraiser. If
within ten (10) business days after the determination of the Initial
Appraisal Difference (under the circumstances described in the
immediately preceding sentence), Seller's Appraiser and Purchaser's
Appraiser shall be unable to agree on the appointment of the Final
Appraiser (in the event such an appointment is necessary), either Seller
or Purchaser, upon written notice to the other, may apply to a court of
competent jurisdiction for appointment of the Final Appraiser. The
costs and expenses of the Final Appraiser shall be divided equally among
Seller and Purchaser.
2.5 Sale of Restaurant Property. Notwithstanding
anything to the contrary contained herein, if Peninsula Partnership
sells the Restaurant Property or any portion thereof, or any portion of
the Peninsula Premises including the Restaurant Property or any portion
thereof, at any time after the Closing Date and prior to the obtaining
of the City Approval, and if the Additional Purchase Price shall not
have thereafter been paid, the Appraised Value shall be determined as
follows: (a) in the event that only the Restaurant Property is the
subject of the sale, the Appraised Value shall be the actual purchase
price of the Restaurant Property (including the value of any non-cash
assets received by Peninsula Partnership as part of such purchase price,
and including the amount of any debt which is assumed or taken subject
to by the purchaser), (b) in the event that the sale includes both the
Restaurant Property and the remaining portion or other portions of the
Peninsula Premises, the Appraised Value shall be that portion of such
purchase price (including the value of any non-cash assets received by
Peninsula Partnership as part of such purchase price, and including the
amount of any debt which is assumed or taken subject to by the
purchaser) which is properly attributable to the Restaurant Property, as
determined by the mutual agreement of Seller and Purchaser, or if they
cannot agree within ten (10) business days after Seller receives notice
of such sale, in accordance with the appraisal procedure provided for in
Section 2.4 and (c) in the event that only a portion of the Restaurant
Property is the subject of the sale, whether or not any other portion of
the Peninsula Premises is also the subject of the sale, the Appraised
Value shall be the sum of (i) the Appraised Value of the portion of the
Restaurant Property sold (determined in accordance with the foregoing
provisions of this Section 2.5, as applied with respect to such portion
of the Restaurant Property) and (ii) the value of the portion of the
Restaurant Property which is not part of such sale, as determined by the
mutual agreement of Seller and Purchaser, or if they cannot agree within
ten (10) business days after Seller receives notice of such sale, in
accordance with the appraisal procedure provided for in Section 2.4. If
a sale of all or a portion of the Restaurant Property occurs, Peninsula
Partnership, within five (5) business days thereafter, shall so advise
Seller and shall deliver to Seller a certified statement of the
aforesaid purchase price, which statement shall contain the specifics as
to how the purchase price was paid, including whether Peninsula
Partnership received any non-cash assets as part of such purchase price.
Notwithstanding anything to the contrary contained in the foregoing, in
the event of a sale to a person or entity affiliated with Peninsula
Partnership, Seller shall have the right to cause the Appraised Value to
be determined pursuant to Section 2.4. In the event the appraisal
procedure provided for in Section 2.4 shall be utilized pursuant to this
Section 2.5, Seller's Appraiser, Purchaser's Appraiser and the Final
Appraiser, if any, shall be instructed to take into account, to the
extent they deem appropriate, the actual purchase price of the portion
of the Peninsula Premises sold.
2.6 Payment of Appraised Value. Purchaser agrees,
that if the Appraised Value is determined pursuant to Sections 2.4 or
2.5, then within ten (10) business days thereafter, Purchaser shall pay
Seller forty-nine and nine-tenths percent (49.9%) of the Appraised
Value, in cash, by wire transfer of immediately available federal funds
to a bank account designated by Seller in writing to Purchaser at least
three (3) business days prior to the date such payment is required to be
made.
2.7 Access to Restaurant Property. Peninsula
Partnership hereby agrees that Seller's Appraiser, Purchaser's Appraiser
and the Final Appraiser, if any, shall have the right upon notice and
during regular business hours to have access to the Restaurant Property
(or any other portions of the Peninsula Premises, if necessary) for the
purpose of determining the Appraised Value pursuant to Sections 2.4 or
2.5.
2.8 Casualty/Condemnation. Seller and Purchaser
hereby agree that in the event that at any time after the Closing Date
the Restaurant Property or any portion thereof, is partially or
completely destroyed by fire or other casualty, any such casualty shall
not be taken into account for purposes of determining the Appraised
Value; it being agreed by Seller and Purchaser that in such event the
Appraised Value shall be determined as if such casualty had not
occurred. In addition, Seller and Purchaser hereby agree that in the
event that at any time after the Closing Date there is a taking or
conveyance of the Restaurant Property or any portion thereof in (or in
lieu of) condemnation proceedings or eminent domain such taking or
conveyance shall be treated in the same manner as a sale of the
Restaurant Property or such portion thereof.
2.9 Survival. The obligation to pay the Additional
Purchase Price shall survive the Closing and the consummation of the
other transactions contemplated by this Agreement.
3. Closing. The Closing shall take place at 10:00 A.M.
at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Associates at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ on October 17, 1996, or at such
other time, date or place as may be agreed upon by Seller and Purchaser.
The date upon which the Closing shall occur shall be referred to herein
as the "Closing Date." As used in this Agreement, the term "Closing"
shall mean (a) the assignment and transfer of the Partnership Interests
and the Shortfall Loans by Seller to Purchaser, (b) the payment to
Seller by Purchaser of the Base Purchase Price and the Shortfall Loan
Amount and (c) the performance by each party of the other obligations on
its part then to be performed under and in accordance with the terms of
this Agreement.
4. Closing Deliveries by Seller. At the Closing, Seller
shall execute, acknowledge where appropriate, and deliver or cause to be
delivered to Purchaser the following instruments and documents:
4.1 Assignment and Assumption Agreement. An
Assignment and Assumption Agreement in the form set forth in Exhibit E
annexed hereto and made a part hereof (the "Assignment and Assumption
Agreement"), assigning and transferring to Purchaser the Partnership
Interests and Seller's interest in the Shortfall Loans, free and clear
of any and all Encumbrances.
4.2 FIRPTA Affidavit. An affidavit stating that
Seller is not a "foreign person" under Section 1445 of the Internal
Revenue Code of 1986, as amended (the "Internal Revenue Code").
4.3 Certificates.
4.3.1 A duly executed and acknowledged
Secretary's or Assistant Secretary's Certificate of ▇▇▇▇ ▇▇▇▇▇▇ Realty
Growth Properties, Inc. ("DWRGP, Inc."), as the managing general partner
of ▇▇▇▇ ▇▇▇▇▇▇ Realty Growth Properties, L.P. ("DWRGP, L.P."),
certifying that the Board of Directors of DWRGP, Inc. has duly adopted
resolutions authorizing, or has otherwise authorized, the execution and
delivery by DWRGP, Inc. on behalf of DWRGP, L.P., as general partner of
Seller, of this Agreement, the Assignment and Assumption Agreement, the
Purchaser's Release (as hereinafter defined) and the consummation of the
transactions contemplated hereby (a copy of which resolutions shall be
annexed to or incorporated in such certificate) and that such action by
such Board of Directors, together with any other authorization certified
to by such Secretary or Assistant Secretary, constitute(s) the only
authorization(s) required by DWRGP, Inc. for such execution, delivery
and consummation.
4.3.2 A certificate of Seller stating that the
representations and warranties of Seller contained in this Agreement are
true and correct in all material respects on the Closing Date.
4.3.3 A certificate of Seller stating that all
required consents, if any, under the partnership agreements of Seller,
DWRGP, L.P., POP/DW Associates ("POP/DW") and POP/Liberty Street
Associates ("POP/Liberty") have been obtained, and to the extent
reasonably necessary to evidence the due authorization of this Agreement
and the transactions contemplated hereby, resolutions of the partners of
such partnerships.
4.3.4 Certificates of good standing in respect
of Seller, DWRGP, INC., DWRGP, L.P., POP/DW and POP/Liberty and dated
not earlier than five (5) business days prior to the Closing Date.
4.4 Purchaser's Release. A purchaser's release, in
form and content as set forth in Exhibit F annexed hereto and made a
part hereof ("Purchaser's Release"), in which Seller on behalf of itself
and its affiliates, releases the Purchaser and his respective affiliates
in respect of all claims, liabilities and obligations relating to the
Premises and the Partnerships (except as otherwise provided in the
Purchaser's Release) other than those arising under or provided for in
this Agreement.
4.5 Amendments to Certificate and Agreement of
Limited Partnership. Amendments to the Certificate of Limited
Partnership for each Partnership and the Partnership Agreements,
evidencing the withdrawal of Seller as a general partner of each
Partnership (the "Amendments").
4.6 Termination Agreement. A termination agreement
in the form set forth in Exhibit G annexed hereto and made a part hereof
(the "Termination Agreement"), executed by RMS/Liberty Street
Associates, L.P. ("Liberty Street") and terminating the investment
management agreement between Peninsula Partnership and Liberty Street
and the investment management agreement between Campus Partnership and
Liberty Street (collectively, the "Investment Management Agreements").
4.7 Notes. The original notes, if any, evidencing
the Shortfall Loans, endorsed by Seller, without recourse or warranty,
except as provided in this Agreement.
4.8 Legal Opinion. A legal opinion of counsel to
Seller, dated as of the Closing Date, and in form and substance
reasonably satisfactory to the Purchaser, to the effect that Seller has
the requisite power and authority to execute, deliver and perform its
obligations under, and has taken all necessary partnership action to
authorize the execution, delivery and performance by it of, this
Agreement and the documents provided herein to be executed and delivered
by Seller.
4.9 Certificate of the Seller. A certificate,
executed by Seller, pursuant to which Seller represents and warrants
that it has no current actual knowledge of any act or event which would
form the basis of any claim by Seller against the Partnerships.
4.10 Other Documents, Etc. Such other or further
document or other item as Seller is required to execute, acknowledge
and/or deliver or cause to be delivered to Purchaser pursuant to any of
the other provisions of this Agreement.
5. Closing Deliveries by Purchaser. At the Closing,
Purchaser shall execute, acknowledge, where appropriate, and deliver or
cause to be delivered to Seller the following payments, instruments and
documents:
5.1 Base Purchase Price and Shortfall Loan Amount.
The Base Purchase Price, and the Shortfall Loan Amount, in each case
payable in the manner provided for in Section 2.1 of this Agreement.
5.2 Assignment and Assumption Agreement. The
Assignment and Assumption Agreement.
5.3 Certificate. A certificate, dated the Closing
Date, stating that the representations and warranties of Purchaser
contained in this Agreement are true and correct in all material
respects on the Closing Date.
5.4 Seller's Release. A release, in form and
content as set forth in Exhibit H annexed hereto and made a part hereof,
in which Purchaser releases Seller, its partners and their respective
affiliates in respect of all claims, liabilities and obligations
relating to the Premises and the Partnerships, other than those arising
under or provided for in this Agreement, executed and acknowledged by
Purchaser.
5.5 Termination Agreement. The Termination
Agreement, executed by the Partnerships.
5.6 Amounts Payable Under the Investment Management
Agreements. All amounts accrued and unpaid under the Investment
Management Agreements shall be paid, in cash, by wire transfer of
immediately available federal funds to a bank account designated by
Liberty Street in writing to the Partnerships at least (3) business days
prior to the Closing.
5.7 Waiver of Right of First Offer. If obtained,
the waiver of ▇▇▇▇▇▇ ▇▇▇▇ referred to in Section 7.6 below.
5.8 Amendments. The Amendments executed by
Purchaser and ▇▇▇▇▇▇ ▇▇▇▇ and, in the case of the amendments to the
Partnership Agreements, the limited partners of the Partnerships (or by
Purchaser as attorney-in-fact for the limited partners of the
Partnerships).
5.9 Legal Opinion. If Purchaser's obligations under
this Agreement have been assumed by one or more Purchaser Assignees (as
hereinafter defined) in accordance with Section 17, a legal opinion of
▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, in form and
substance reasonably satisfactory to Seller, to the effect that such
Purchaser Assignees have the requisite power and authority to execute
and deliver the Assignment and Assumption of Purchase Agreement (as
defined in Article 17) and the documents to be delivered by Purchaser at
the Closing and to perform the obligations of Purchaser under this
Agreement and such documents and have taken all necessary corporate or
partnership action, as applicable, to authorize such execution, delivery
and performance.
5.10 Certificate of the Partnerships. A certificate,
executed by the general partner (other than Seller) of each of the
Partnerships, pursuant to which each such general partner represents and
warrants that it has no current actual knowledge of any act or event
would form the basis for any claim by such Partnership against Seller.
5.11 Other Documents, Etc. All other instruments and
documents and other items, if any, required to be executed, acknowledged
and/or delivered by Purchaser to Seller pursuant to and in accordance
with any of the other provisions of this Agreement.
6. Conditions Precedent to Obligation of Purchaser. The
obligation of Purchaser to consummate the purchase of the Partnership
Interests and the Shortfall Loans shall be subject to the fulfillment on
or before the Closing Date of all of the following conditions, any or
all of which may be waived by Purchaser in its sole discretion:
6.1 Delivery of Documents. Seller shall have
delivered to Purchaser all of the items required to be delivered to
Purchaser pursuant to the terms of this Agreement, including, but not
limited to, those provided for in Article 4.
6.2 Accuracy of Representations and Warranties. All
of the representations and warranties of Seller contained in this
Agreement shall be true and correct in all material respects on the
Closing Date.
6.3 Observance of Covenants. Seller shall have
performed and observed, in all material respects, all covenants and
agreements of this Agreement to be performed and observed by Seller as
of the Closing Date.
6.4 Consents/Waivers. Purchaser shall have obtained
all of the consents, releases and waivers required to be obtained by
Purchaser listed on Exhibit I annexed hereto and made a part hereof,
validly executed by the appropriate parties. Purchaser shall, during
the period between the date hereof and the Closing Date, use its best
efforts to obtain such consents, releases and waivers.
7. Conditions Precedent to Obligations of Seller. The
obligation of Seller to consummate the sale of the Partnership Interests
and the Shortfall Loans to Purchaser shall be subject to the fulfillment
on or before the Closing Date of all of the following conditions, any or
all of which may be waived by Seller in its sole discretion:
7.1 Receipt of Base Purchase Price and Shortfall
Loan Amount. Seller shall have received the Base Purchase Price and the
Shortfall Loan Amount, in each case payable in the manner provided for
in Section 2.1 of this Agreement.
7.2 Delivery of Documents. Purchaser shall have
delivered to Seller all of the items required to be delivered to
Purchaser pursuant to the terms of this Agreement, including, without
limitation, those provided for in Article 5.
7.3 Receipt of Amounts Payable Under Investment
Management Agreements. Liberty Street shall have received the amount
set forth in Section 5.6, payable in the manner provided for in such
section.
7.4 Accuracy of Representations and Warranties. All
of the representations and warranties of Purchaser contained in this
Agreement shall be true and correct in all material respects on the
Closing Date.
7.5 Observance of Covenants. Purchaser shall have
performed and observed, in all material respects, all covenants and
agreements of this Agreement to be performed or observed by Purchaser as
of the Closing Date.
7.6 Consents/Waivers. Purchaser shall have obtained
all of the consents, releases and waivers, including the waiver of the
right of first offer from ▇▇▇▇▇▇ ▇▇▇▇ provided for in Section 7.03 of
the Partnership Agreements and the consent of The Equitable Life
Assurance Society of the United States, listed on Exhibit I annexed
hereto and made a part hereof, validly executed by the appropriate
parties. Such waiver of ▇▇▇▇▇▇ ▇▇▇▇ shall be substantially in the form
annexed hereto as Exhibit J and shall in any event contain the consent
of ▇▇▇▇▇▇ ▇▇▇▇ and the waiver of his right of first offer. Purchaser
shall, during the period between the date hereof and the Closing Date,
use its best efforts to obtain such consents, releases and waivers.
8. Representations and Warranties of Seller. In order to
induce Purchaser to purchase the Partnership Interests and the Shortfall
Loans from Seller, Seller, as of the date of this Agreement and as of
the Closing Date, represents and warrants to and with Purchaser as
follows (all of which representations and warranties shall survive the
Closing and the consummation of the transactions contemplated by this
Agreement):
8.1 Partnership Interests. Seller has good and
lawful title to the Partnership Interests and the Shortfall Loans free
and clear of any and all Encumbrances and, subject to the obtaining all
the consents and waivers listed on Exhibit I, has the unrestricted right
to sell, transfer and assign the same to Purchaser.
8.2 Seller's Status, Etc. Seller is a general
partnership duly organized, validly existing and in good standing under
the laws of the State of California. Seller has full partnership power
and authority to enter into and perform this Agreement. The execution,
delivery and performance of this Agreement by Seller and the documents
to be executed by Seller pursuant hereto have been duly and validly
authorized by all necessary action on the part of Seller.
8.3 Enforceability. This Agreement constitutes and,
upon execution and delivery of each of the documents to be executed by
Seller pursuant hereto, will constitute the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with the
terms hereof and thereof, except as the enforceability hereof and
thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or similar laws affecting
creditors' rights generally or by general equity principles (regardless
of whether such enforceability is considered in a proceeding at law or
in equity).
8.4 No Violations. Execution and delivery by Seller
of this Agreement do not, and, subject to the obtaining of all of the
consents and waivers listed on Exhibit I, the consummation of the
transactions contemplated by this Agreement, will not, violate or result
in any breach of, or constitute a default (or an event that, with notice
or lapse of time or both, would constitute a default) under any
judgment, decree, order, statute, rule or regulation applicable to
Seller, or any contract, indenture, mortgage, loan agreement,
partnership agreement or other instrument to which Seller is a party or
by which Seller is bound.
8.5 No Litigation. There is no pending or
threatened litigation against Seller which would or could affect
Seller's ability to enter into this Agreement or perform its obligations
hereunder.
9. Representations and Warranties of Purchaser. In order
to induce Seller to sell the Partnership Interests and the Shortfall
Loans to Purchaser and to fulfill each of its other obligations
hereunder, as of the date of this Agreement and as of the Closing Date,
Purchaser represents and warrants to Seller as follows:
9.1 Enforceability. This Agreement constitutes and,
upon execution and delivery of each of the documents to be executed by
Purchaser pursuant hereto, will constitute the valid, legal and binding
obligations of Purchaser and, to the extent applicable, the
Partnerships, enforceable against Purchaser and the Partnerships in
accordance with the terms hereof and thereof, except as the
enforceability hereof and thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws affecting creditors' rights generally or by
general equity principles (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
9.2 No Violations. Execution and delivery by
Purchaser and the Partnerships of this Agreement do not and, subject to
the obtaining of all the consents and waivers listed on Exhibit I, the
consummation of the transactions contemplated by this Agreement will
not, violate or result in any breach of, or constitute a default under,
any judgment, decree, order, statute, rule or regulation applicable to
Purchaser or either Partnership, or any contract, indenture, mortgage
loan agreement, partnership agreement or other instrument to which
Purchaser or either Partnership is a party or by which Purchaser or
either Partnership is bound.
9.3 Consents. Except for the consents set forth on
Exhibit I, no consent, waiver, authorization of, filing with, or notice
to any other person or entity is required to be made under any documents
binding on the Purchaser or either Partnership in connection with the
execution, delivery and performance of this Agreement.
9.4 No Litigation. There is no pending or
threatened litigation against the Purchaser which would or could affect
Purchaser's ability to enter into this Agreement or perform its
obligations hereunder.
9.5 No Prior Negotiations. Purchaser has not
negotiated with any third party for the sale of all or a portion of the
Premises within the past year.
10. Obligation of Purchaser to Indemnify.
10.1 Indemnity Regarding Breach of Representations
and Warranties. Purchaser hereby agrees to indemnify, defend and save
harmless Seller from and against all costs, liabilities, damages and
expenses (including, without limitation, reasonable attorneys' fees and
disbursements) imposed upon, incurred by (whether by way of judgment,
award, decree, settlement payment or otherwise) or suffered by Seller by
reason of a breach in any material respect of any representation or
warranty of Purchaser contained in Article 9 or (b) a breach in any
material respect of any covenant of Purchaser contained in this
Agreement which is to be performed after the Closing.
10.2 Indemnity Regarding Post-Closing Obligations.
Purchaser hereby agrees to indemnify, defend and save harmless Seller
and its affiliates from any costs, damages, liabilities and expenses
(including, without limitation, reasonable attorneys' fees and
disbursements) imposed upon, incurred by (whether by way of judgment,
award, decree, settlement payment or otherwise), or allegedly due from,
Seller or its affiliates, arising out of any liability or obligation of
either of the Partnerships which arises by reason of any action or event
occurring, or any obligation accruing, on or after the Closing Date.
10.3 Survival. The provisions of this Article 10
shall be effective only if the Closing occurs and shall survive the
Closing and the consummation of the transactions contemplated by this
Agreement.
11. Obligation of Seller to Indemnify.
11.1 Indemnity Regarding Breach of Representations
and Warranties. Seller hereby agrees to indemnify, defend and save
harmless Purchaser from and against all costs, liabilities, damages and
expenses (including, without limitation, reasonable attorneys' fees and
disbursements) imposed upon, incurred by (whether by way of judgment,
award, decree, settlement payment or otherwise) or suffered by Purchaser
by reason of (a) a breach in any material respect of any representation
or warranty of Seller contained in Article 8, or (b) a breach in any
material respect of any covenant of Seller contained in this Agreement
which is to be performed after the Closing.
11.2 Survival. The provisions of this Article 11
shall be effective only if the Closing occurs and shall survive the
Closing.
12. No Broker. Seller and Purchaser each represents and
warrants to the other that it has not authorized any broker, finder or
similar person to act on its behalf in respect of the transactions
contemplated hereby and that it has dealt with no broker, finder or
similar person in connection therewith. Each of Seller and Purchaser
shall indemnify and shall hold harmless the other from and against all
claims, costs, liabilities, damages, penalties and expenses, including,
without limitation, reasonable attorneys' fees and expenses, arising
from the untruth of the indemnifying party's representation set forth in
the preceding sentence. The provisions of this Article 12 shall survive
the Closing.
13. Survival. Except to the extent specifically set forth
to the contrary in this Agreement, all representations, warranties,
covenants, agreements, and indemnities made by Seller, Purchaser or
either Partnership in or pursuant to this Agreement and/or the documents
required to be delivered by Seller, Purchaser or either Partnership
hereunder shall survive the Closing.
14. Further Assurances. Seller and Purchaser agree, at
any time and from time to time after the Closing, to execute,
acknowledge where appropriate and deliver such further instruments and
documents and to take such other action as the other party may
reasonably request in order to carry out the intent and purpose of this
Agreement, at the expense of the party making such request, provided,
however, that neither Seller nor Purchaser shall, in connection with the
foregoing, be obligated to incur any liabilities or obligations in
addition to their respective liabilities or obligations otherwise
contemplated in this Agreement. The provisions of this Article 14 shall
survive the Closing.
15. Payment of Expenses. Each party shall pay the fees
and expenses of its attorneys, accountants and other professionals and
experts incurred in connection with the negotiation of this Agreement
and in preparation for Closing. Purchaser shall pay any transfer or
similar taxes payable in connection with the transactions contemplated
hereby. Purchaser shall pay all costs associated with the filing of the
Certificate Amendments.
16. Notices. All notices, consents, approvals and other
requests or other communications required or permitted by this Agreement
shall be in writing and (a) delivered by hand against receipt,
(b) transmitted by telecopy with transmission confirmed, (c) sent by
certified or registered mail, postage prepaid, with return receipt
requested, or (d) sent by nationally recognized overnight courier,
postage prepaid. All notices shall be address as follows:
If to Seller:
Peninsula/DW Associates
c/o ▇▇▇▇ ▇▇▇▇▇▇ Realty, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser or the Partnerships:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Associates
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ Building, 30th Floor
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or addresses as may be designated in writing by
a proper notice delivered by one party to the other. Any properly given
notice shall be effective when received if received on a businesses day
during normal business hours and otherwise shall be effective on the
next business day. Refusal to accept delivery shall be deemed to
constitute delivery at the time so refused.
17. Assignment. This Agreement may not be assigned by
Purchaser without the written consent of Seller; provided, however,
Purchaser shall have the right at or simultaneous with the Closing
(a) to cause Seller to transfer a portion (not to exceed 20%) of the
Partnership Interests and Shortfall Loans to one or more persons or
entities designated by Purchaser, provided that any such person or
entity shall be subject to the approval of Seller, which approval shall
not be unreasonably withheld (each, a "Purchaser Designee"), and/or
(b) assign all or a portion of its interest under this Agreement to
Office Opportunity Fund III, L.P., a California limited partnership
("Fund III"), or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Associates, a California corporation,
Opportunity Capital Partners III LLC, a California limited liability
company ("OCP III"), or an entity controlled by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and
composed of Fund III, OCP III, employees of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Associates
and/or limited partners of the Partnerships and/or Fund III (each, a
"Purchaser Assignee"). Purchaser represents and warrants to Seller that
Fund III and OCP III are affiliates of Purchaser. If Purchaser intends
to cause Seller to transfer a portion of the Partnership Interests and
the Shortfall Loans to a Purchaser Designee, or elects to assign all or
a portion of its interest under this Agreement to a Purchaser Assignee
(a) Purchaser shall be required to so notify Seller in writing at least
five (5) business days prior to the Closing Date and (b) Purchaser shall
deliver to Seller at the Closing any third-party consents or waivers
(including those, if any, required under the Partnership Agreements) not
described in Section 7.6 and necessitated by such designation or
assignment. Purchaser hereby acknowledges and agrees, however, that
(i) the obtaining of such consents or waivers shall not be conditions to
Purchaser's Closing obligations and (ii) if Purchaser is unable to
obtain any such consents, it shall not consummate the assignment or
designation in question. If Purchaser elects to assign all or a portion
of its interest under this Agreement to one or more Purchaser Assignees,
at the Closing each Purchaser Assignee shall also be required to (a)
enter into an agreement (an "Assignment and Assumption of Purchase
Agreement"), in form and substance reasonably satisfactory to Seller,
such Assignment and Assumption of Purchase Agreement to contain
provisions whereby the Purchaser Assignee (i) confirms that it shall be
deemed a party to this Agreement with like effect as if originally named
Purchaser in this Agreement and included within the term "Purchaser" and
(ii) agrees to be bound by all of the terms of, and to undertake the
obligations of "Purchaser" contained in this Agreement (including,
without limitation, the obligation to pay the Additional Purchase
Price), and in which the Purchaser Assignee shall, as a precondition to
any such assignment, make representations and warranties substantially
equivalent to those of Purchaser contained in this Agreement including,
without limitation, those of Purchaser contained in Section 9 hereof and
(b) to deliver certificates with respect to the Purchaser Assignee
comparable to those described in subsections 4.3.1, 4.3.3 and 4.3.4
hereof. The Purchaser named herein on the date hereof and the Purchaser
Assignee shall be jointly and severally liable for all the obligations
and liabilities in this Agreement, including, without limitation, the
obligations set forth in Sections 2 and 10 hereof. Notwithstanding any
assignment or designation made by Purchaser in accordance with this
Section 17, Purchaser shall have the authority through one or more
entities to act on behalf of all Purchaser Assignees and Purchaser
Designees in connection with the Closing and the transactions
contemplated by this Agreement, including, without limitation, the
determination of the Additional Purchase Price and the execution and
delivery of the documents to be executed and delivered by Purchaser
pursuant to Section 5 hereof, and the Purchaser Assignees and Purchaser
Designees shall so acknowledge at or prior to the Closing. Seller shall
have the right to assign any or all of its rights under this Agreement,
including, without limitation, its right to receive the Additional
Purchase Price and any rights associated thereto, together with its
obligations hereunder, to any of its affiliates.
18. Miscellaneous Provisions.
18.1 Waiver. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated orally, but only
by an instrument in writing signed by the party against whom the
enforcement of the change, waiver, discharge or termination is sought
or, in the case of a default, by the non-defaulting party or parties.
18.2 Confidentiality. Neither Purchaser nor Seller
shall disclose the contents of this Agreement to any third parties or
issue any press release with respect thereto or the Closing hereunder
without the consent of the other, except as may be compelled pursuant to
law or required for compliance with applicable governmental rules and
regulations; provided, however, that nothing herein shall be deemed to
limit or impair in any way (a) Seller's ability to disclose to the
investors of DWRGP, L.P., and any potential assignees of Seller's
interest hereunder and their respective counsel or consultants, such
contents of this Agreement and details of the transaction contemplated
hereby as Seller deems necessary or desirable or (b) Purchaser's ability
to disclose to partners of the Partnerships and potential Purchaser
Assignees and Purchaser Designees and their respective partners,
investors, counsel and consultants such contents of this Agreement and
details of the transaction contemplated hereby as Purchaser deems
necessary or desirable. Notwithstanding anything to the contrary
contained in this Section 18.2, nothing in this Section 18.2 shall be
construed as prohibiting Purchaser and Seller from disclosing the
contents of this Agreement on a confidential basis to such parties'
counsel or consultants. Seller and Purchaser each agree to consult with
and cooperate with the other on the content and timing of any press
releases and other public announcements relating to the transactions
contemplated by this Agreement issued prior or immediately subsequent to
the Closing.
18.3 Tax Matters. Subsequent to the Closing,
Purchaser shall submit to Seller, for its review and approval (such
approval not to be unreasonably withheld or delayed) prior to filing,
all tax returns covering taxable periods in which Seller was a partner
of the Partnerships. To the extent any tax decisions and elections for
the Partnerships to be made subsequent to the Closing relate to taxable
periods in which Seller was a partner of the Partnerships, such
decisions and elections shall be subject to the approval of Seller,
which approval shall not be unreasonably withheld or delayed. Purchaser
shall promptly notify Seller of any inquiry or audit of either
Partnership by the Internal Revenue Service or any other taxing
authority which occurs after the Closing and which relates to taxable
periods in which Seller was a partner of such Partnership. In the event
of any such audit, Seller shall have the right, at Seller's expense, to
participate with Purchaser and no issue or liability involved in such
audit shall be settled without the consent of Seller, which consent
shall not be unreasonably withheld or delayed. The provisions of this
Section 18.3 shall survive the Closing.
18.4 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective legal representatives, successors and
permitted assigns, but shall not inure to the benefit of, or be
enforceable by, any other person or entity.
18.5 Merger. All understandings and agreements
heretofore had between the parties hereto are merged in this Agreement
and the instruments and documents referred to herein, which fully and
completely express their agreements with respect to the purchase of the
Partnership Interests and related transactions, and supersede all prior
agreements, written or oral, with respect thereto.
18.6 Governing Law. This Agreement shall in all
respects be governed by and construed in accordance with the laws of the
State of California applicable to agreements made and to be performed
entirely within such State, without regard to the conflict of laws
principles of such State.
18.7 Captions. The captions and Article headings
included in this Agreement and the table of contents are for convenience
only, do not constitute part of this Agreement and shall not be
considered or referred to in interpreting the provisions of this
Agreement.
18.8 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an
original, but all of which shall constitute one and the same instrument.
The submission of a signature page transmitted by facsimile (or similar
electronic transmission facility) shall be considered as an "original"
signature page for purposes of this Agreement so long as the original
signature page is thereafter transmitted by mail or by other delivery
service and the original signature page is substituted for the facsimile
signature page in the original and duplicate originals of this
Agreement.
18.9 Severability. If any provision hereof is held
invalid or not enforceable to its fullest extent, such provision shall
be enforced to the extent permitted by law, and the validity of the
remaining provisions hereof shall not be affected thereby.
18.10 AS IS. PURCHASER ACKNOWLEDGES THAT, EXCEPT FOR
THE EXPRESS WARRANTIES AND REPRESENTATIONS CONTAINED IN THIS AGREEMENT
OR ANY INSTRUMENT, DOCUMENT OR AGREEMENT TO BE DELIVERED TO PURCHASER AT
CLOSING, (a) PURCHASER IS NOT RELYING ON ANY WRITTEN, ORAL, IMPLIED OR
OTHER REPRESENTATIONS, STATEMENTS OR WARRANTIES BY SELLER OR ANY AGENT
OF SELLER, (b) SELLER HAS MADE NO, AND EXPRESSLY DISCLAIMS, ALL,
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS, EXPRESS OR
IMPLIED OR BY OPERATION OF LAW, WITH RESPECT TO ANY MATTER AFFECTING THE
PARTNERSHIP INTERESTS AND THE SHORTFALL LOANS AND (c) THE PARTNERSHIP
INTERESTS AND SHORTFALL LOANS ARE BEING SOLD "AS IS."
SELLER ACKNOWLEDGES THAT, EXCEPT FOR THE EXPRESS
WARRANTIES AND REPRESENTATIONS CONTAINED IN THIS AGREEMENT OR ANY
INSTRUMENT, DOCUMENT OR AGREEMENT TO BE DELIVERED TO SELLER AT CLOSING,
(a) SELLER IS NOT RELYING ON ANY WRITTEN, ORAL, IMPLIED OR OTHER
REPRESENTATIONS, STATEMENTS OR WARRANTIES BY PURCHASER OR ANY AGENT OF
PURCHASER, (b) PURCHASER HAS MADE NO, AND EXPRESSLY DISCLAIMS, ALL,
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS, EXPRESS OR
IMPLIED OR BY OPERATION OF LAW, WITH RESPECT TO ANY MATTER AFFECTING THE
PARTNERSHIP INTERESTS AND THE SHORTFALL LOANS.
18.11 Specific Performance. The parties hereto
acknowledge and agree that the legal remedy for breach by any of them of
their respective obligations hereunder will be inadequate and,
therefore, in the event of any breach of such obligations the parties
hereto agree that in addition to any other available remedy, such
obligations may be specifically enforced against each of them through
injunctive or other equitable relief obtained from any court having
jurisdiction.
18.12 Right to Extend. Purchaser shall have the
right, upon not less than ten (10) days' prior written notice to Seller
in each instance, to extend the Closing one or more times to a date not
later than December 17, 1996 solely in order to obtain, in connection
with the transactions contemplated hereby and the possible assignment of
Purchaser's interest hereunder, the approval of the partners of the
Partnerships and the Purchaser Assignees and/or Purchaser Designees, if
any, to amendments to the Partnership Agreements necessary to conform
them to the standard form of partnership agreement used by Purchaser for
partnerships which he forms to acquire properties, provided that
Purchaser shall be attempting in good faith to obtain such consents. In
no event shall the obtaining of such consents be a condition to
Purchaser's obligation to consummate the purchase of the Partnership
Interests and the Shortfall Loans and to perform its other obligations
hereunder.
18.13 No Extensions. Except as otherwise provided
herein, Purchaser hereby agrees that it shall not be permitted to extend
the Closing Date for any reason whatsoever.
18.14 Capital Contributions. Each of Peninsula
Partnership and Campus Partnership acknowledge and agree that as of the
Closing Date Seller shall have no further obligation to make any
additional capital contributions or Shortfall Loans to the Partnerships.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
SELLER:
PENINSULA/DW ASSOCIATES,
a California general partnership
By: POP/DW Associates, a California
limited partnership, General
Partner
By: POP/Liberty Street
Associates, a California
limited partnership,
General Partner
By:_________________________
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr.,
General Partner
By: ▇▇▇▇ ▇▇▇▇▇▇ Realty Growth
Properties, L.P., a Delaware
limited partnership, General
Partner
By: ▇▇▇▇ ▇▇▇▇▇▇ Realty Growth
Properties, Inc., a
Delaware corporation,
General Partner
By: _________________________
Name: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Jr.
Title: President
PURCHASER:
___________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III
By executing this Agreement, each of the Partnerships hereby
agrees to be bound to the provisions of this Agreement to the extent
such provisions apply to it.
PENINSULA OFFICE PARK,
a California limited partnership
By:____________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III,
General Partner
CAMPUS DRIVE INVESTMENT COMPANY,
a California limited partnership
By: Peninsula Office Park,
a California limited partnership,
General Partner
By:____________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III,
General Partner